This lack of clarity issue will be adjudicated by considering the "single-subject test" and essentially divining the general purpose behind the gay marriage and unmarried individuals propositions comprising the referendum. [The other issue is whether the Wisconsin voter McConkey has proper standing as a voter to object to the formulation of the referendum.]

The appeals court held that the few cases on point apparently offer conflicting approaches to applying the single-subject test, and that it is not clear what is the “proper method for determining the purpose of a proposed amendment” which would offer some guidance on this issue.

Constitutional amendment language

The language of the 2006 referendum reads:

Shall section 13 of article XIII of the constitution be created to provide that only a marriage between one man and one woman shall be valid or recognized as a marriage in this state and that a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state? [Emphasis added]

Reading the question‘s 59 words, it’s easy to spot a problem in the formulation of the amendment language.

Compound question

It’s a compound question that asks for one response to two propositions from the voters on the same referendum question. This compound formulation promotes ambiguity rendering the electorate’s ballot preference unknown because voters were only able to get to cast one yes or no to the two different questions.

In his ruling last year, Dane County Circuit Judge Richard Niess said McConkey could sue (and his case was not tossed, and so moved ahead). But he ruled the two clauses in the referendum question were ‘two sides of the same coin’ and properly decided with one vote.

‘They clearly relate to the same subject matter and further the same purpose: the preservation and protection of the unique and historical status of traditional marriage,’ he said in a ruling from the bench.

What in Sam’s hell you thinking, Judge Niess? That's the same conclusion reached by the religious right, J.B. Van Hollen and the GOP who put this referendum on the ballot in the first place: "(H)istorical status of traditional marriage" is a GOP talking point used to protect America from the gays.

There is no justification for Niess imputing a unitary coherence onto the religious right's compound formulation.

This would be like the GOP passing an amendment calling for banning evolution being taught in public schools and prohibiting sex education in the schools, and the Niess saying the questions are related because of they further 'the preservation and protection of the unique and historical status of traditional family values.'

The first part of the referendum question asks about one man-one woman and marriage.

The second part of the question asks about “unmarried individuals” not having relationships resembling a legal marriage without mention of any gender requirement of the individuals in question.

The second part of the question applies to relationships among unmarried individuals and constraints on the legal recognition of certain relationships between unmarried individuals of unspecified gender that “shall not be valid or recognized in this state.”

Do you think a voter could be in favor of the first question but not the second?

And since the voter is forced to answer both questions with one yes or no, that there might be a problem of ambiguity here with the formulation?

Judge Niess’ speculation

Furthermore, Judge Niess’ speculation that the legislative purpose of the amendment is the “preservation and protection of the unique and historical status of traditional marriage” is foolish (and astoundingly ignorant) in the face of the dynamic, evolving history of marriage.

Back to the formulation. Banning same sex marriage in the first proposition. But what happened to same sex exclusions in the second proposition? It’s not there and the propositions are two different subjects with two very different political histories and two different public policy effects.

If Niess wants to speculate on purpose, he would be more on target to assert the GOP and religious right want to punish gays with whom they have both a strange interest and enmity.

And on the second matter, the GOP's politics are very weird about society sanctioning relationships between unmarried individuals of any gender because of their particular mores or political objectives of the moment.

In any event, Niess’ ruling sent the case forward to an appeals court that certified it for Supreme Court hearing.

Let’s hope the Supreme Court invalidates this plain compound-question referendum and the shameful constitutional amendment that it brought us, and creates a judicial doctrine that would offer guidance in the future for clear judicial policymaking should we ever again elect a legislature foolish enough to send voters a compound question as a referendum again.

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Michael Leon

Michael Leon is a writer living in Madison, Wisconsin. His reporting has been recognized by the Wisconsin Newspaper Association. Leon's writing has appeared nationally in The Progressive, The Advocate, In These Times, CounterPunch and The Champion—the journal of the National Association of Criminal Defense Lawyers, and locally in the Isthmus, the Capital Times and the Fitchburg Star. Leon works as a writer, editor, veterans' advocate, and public relations consultant.